Under Article II of the Constitution, the President is the executive branch. But over the years, Congress has tried to limit the power of the President by establishing a number of “independent” agencies–the SEC, the FDIC, the Federal Trade Commission, the Federal Communications Commission, the Food and Drug Administration, and so on. In many cases, Congress has purported to limit the President’s ability to fire employees of those “independent” agencies, even though they are part of the executive branch and nominally under his control.
Democrats like this arrangement, since the agencies are staffed overwhelmingly by Democrats. They have served to undermine every Republican president of the last generation. Until now, Republican Presidents have generally put up with the fact that they do not effectively control the executive branch, but President Trump has moved to assert his proper constitutional authority in several ways.
Most notably, in February he issued an executive order which we wrote about here. It asserted, in several ways, his authority over the “independent” agencies. He has also fired a member of the Board of Governors of the Federal Reserve for cause, and, more importantly, he has fired other executive branch officials without cause, as should be his prerogative under Article II.
This has given rise to the vitally important case of Slaughter v. Trump. Rebecca Slaughter was a Federal Trade Commissioner. President Trump fired her without asserting any “cause,” even though the Federal Trade Commission Act says that a Commissioner can be removed by the President only for “inefficiency, neglect of duty, or malfeasance in office.” The administration takes the position–correctly, I think–that this limitation on the President’s control of the executive branch is unconstitutional.
Slaughter sued Trump, and D.C. District Judge Loren AliKhan, a Biden appointee–to be fair, one with a distinguished academic record–ruled in Slaughter’s favor and granted an injunction barring the President from firing her and requiring other FTC commissioners to treat her as one of their own.
The case went to the District of Columbia Court of Appeals, which denied the government’s emergency motion to stay the District Court’s order pending appeal. In one sense, that decision was easy: two of the three appellate judges who heard the case at this stage pointed out that in the famous case of Humphrey’s Executor v. United States, 295 U.S. 602 (1935), the Supreme Court specifically upheld the “for cause” requirement of the Federal Trade Commission Act. So what is left to argue about?
Circuit Court Judge Neomi Rao wrote a spirited dissent, in which she pointed out that Humphrey’s Executor, a case so narrowed by more recent Supreme Court precedent that many doubt its ongoing validity, has not prevented the current Supreme Court from staying other recent District Court orders that seek to limit the President’s control of the executive branch. Those Supreme Court cases, Rao argued, are the most relevant precedents.
It turns out that Rao was right, insofar as she predicted what the current Court would make of this case, at this point in its procedural history. Earlier today, the Supreme Court issued a one-paragraph order, signed by Chief Justice John Roberts, staying Judge AliKhan’s order, and thus vindicating Judge Rao’s dissent.
What does it all mean? Recently, Justice Brett Kavanaugh has said publicly that the Supreme Court is issuing such laconic orders because it does not want to prejudge the merits of the case that ultimately will come before it. That position is sensible. It is hard not to notice, however, that the Trump administration has an excellent record in cases that have come before the Supreme Court, albeit, for obvious reasons, in their early stages.
What is being teed up here is, ultimately, an epic battle between Congress and the President. Democrats are on the side of Congress, mostly because Congress has, in turn, ceded power to the Administrative State, which is overwhelmingly Democratic but which, as Professor Philip Hamburger among others has persuasively argued, is essentially unconstitutional. Republicans are now mostly on the President’s side, because the current President is a Republican, and because they have seen how the Administrative State has become a permanent and unaccountable fourth branch of government.
Of all the battles to which the Trump administration has given rise, this one may, in the end, be the most important.
